DEPARTMENT OF HOMELAND SECURITY U.S. CUSTOMS AND BORDER PROTECTION SWANTON, VERMONT and NATIONAL BORDER PATROL COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2774

OALJ 10-18

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C.

DEPARTMENT OF HOMELAND
SECURITY

U.S. CUSTOMS AND BORDER
PROTECTION

SWANTON,
VERMONT

RESPONDENT

AND

NATIONAL BORDER PATROL
COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2774

CHARGING PARTY

Case No.
BN-CA-09-0171

Gerard M.
Greene

For the General
Counsel

David A.
Markowitz

For the
Respondent

Patricia T.
Nighswander

For the Charging
Party

Before: RICHARD A.
PEARSON

Administrative Law
Judge

DECISION

STATEMENT OF THE
CASE

This is an unfair
labor practice proceeding under the Federal Service
Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (the
Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (the Authority), 5 C.F.R. part 2423.

On March 3, 2009, the
National Border Patrol Council, American Federation of Government
Employees, AFL-CIO, Local 2774 (the Union or the Charging Party)
filed an

unfair labor practice
charge against the Department of Homeland Security, U.S. Customs
and

Border Protection,
Swanton, Vermont (the Agency or the Respondent). After
investigating the charges, the Acting Regional Director of the
Boston Region of the Authority issued a Complaint and Notice of
Hearing on December 18, 2009, alleging that the Agency had refused
to fully comply with a final arbitration award as required by
Sections 7121 and 7122 of the Statute, and that such refusal
constituted an unfair labor practice in violation of section
7116(a)(1) and (8) of the Statute. The Respondent filed its Answer
to the Complaint on January 12, 2010, denying that it refused to
comply with the award or committed any unfair labor practice.

A hearing was held in
this matter on February 3, 2010, in Burlington, Vermont. All
parties were represented and afforded the opportunity to be heard,
to introduce evidence, and to examine witnesses. The General
Counsel and Respondent filed post-hearing briefs, which I have
fully considered.

Based on the entire
record1including my observation of the witnesses
and their demeanor, I make the following findings of fact,
conclusions of law, and recommendations.

FINDINGS OF
FACT

Ross D. Schofield was
hired by the Immigration and Naturalization Service (which later
merged into the Respondent) in 1997 as a Border Patrol Agent. In
February of 2005, he was working as a GS-1896-11 Border Patrol
Agent assigned to the Newport, Vermont, Border Patrol Station,
which is one of eight stations in the Swanton Sector that covers
the U.S.-Canada border in New York and Vermont. At that time,
Agent Schofield and two other agents were involved in the
apprehension and release of a drug smuggling suspect and the
seizure of 60 pounds of marijuana. Jt. Ex. 1 at 8-9. In the weeks
after the incident, officials of the Agency, as well as officials
of Immigration and Customs Enforcement, the Drug Enforcement
Administration and the Newport police, came to believe that the
three agents had falsified information on the documents relating to
the drug seizure: although the documents prepared by the agents
indicated that they had found the marijuana "abandoned" on a
roadside and concealed the fact that a suspect in possession of the
drugs had initially been arrested, contradictory details began to
surface. Id.at 10-11. Upon further questioning, Schofield
and the other two agents admitted that they had falsified details
of their reports in order to utilize the drug suspect as an
informant and to provide the suspect with a plausible alibi for
losing his drugs. Id.at 9-10, 12, 18-20. They believed that such
falsification was justifiable based on a prior case at the Newport
Station. Id.at 10, 13.

After an investigation,
the agents were indicted in November 2005 by a Federal grand jury
on a series of charges including conspiracy and the making of
materially false statements to Federal officials. Shortly
thereafter, Schofield was placed on indefinite suspension by the
Agency, based on his indictment. Id.at 13. However, the criminal
charges against Schofield were dropped by the U.S. Attorney in July
2006, causing the Agency to rescind his suspension, place him on
paid duty status and on administrative leave pending further
disciplinary investigation. Id. The case was presented to
the Agency's National Disciplinary Review Board, and in November
2007 the Agency issued a notice of intent to remove Agent Schofield
from the Federal service. The Agency characterized his series of
false statements as "wrong and deceptive," alleging that he had
"jeopardized the mission and significantly damaged the credibility
of the CBP/Border Patrol as a law enforcement agency," and that he
had "demonstrated complete disregard for the drug interdiction
process and the interagency coordination that exists."
Id.at 14.

The Union filed a
grievance on Agent Schofield's behalf, challenging the removal;
after conducting a hearing on the grievance, Arbitrator Parker
Denaco issued a decision and award on December 5, 2008. Jt. Ex. 1
(the Award). The Union challenged the Agency's removal of Agent
Schofield both on the merits of the case and on the ground that the
Agency had violated Article 32(G) of the collective bargaining
agreement, which requires the Agency to furnish employees with
notices of proposed adverse actions "at the earliest practicable
date[.]" The arbitrator analyzed prior arbitration precedent
between these parties concerning Article 32(G), concluding that the
provision is not merely procedural but substantive, thus obviating
the need for the grievant to show harmful error from a delay.
Id.at 23-24. Noting that the Agency proposed Schofield's
removal 33 months after the alleged misconduct, or 16 months after
the Federal indictment against Schofield was dismissed, the
arbitrator determined that the latter period was unjustifiable;
thus he concluded that the Agency had violated Article 32(G).
Id.at 24-25.

Arbitrator Denaco stated
that his finding of an Article 32(G) violation was "dispositive of
this case", but he went on nonetheless to express reservations
concerning the substantive charges against Schofield.
Id.at 27-28. He found that the Agency did not prove that
Schofield knew the actions of his fellow agents were improper or
that they had received training on the use of informants.
Id.at 27. He also cited mitigating factors that might have
weighed in favor of a lesser penalty than removal.
Id.at 28. Based on his conclusion that the Agency had
violated Schofield's Article 32(G) rights under the CBA, the
arbitrator ordered the Agency to vacate the adverse action against
the grievant, to expunge all records referring to the adverse
action, and to reinstate the grievant with back pay and benefits
from the date of his removal; he further gave Schofield the right
to request reassignment out of his current chain of command.
Id.at 29-30.

Upon receiving the
arbitrator's decision and award, the Agency did not appeal, but
rather began to implement it. Schofield was put back on active
duty on January 5, 2009 and told to report to the Newport Station
headquarters. Tr. 17. The parties stipulated that he
was

paid back pay and
benefits from the date of his removal to his reinstatement. Jt.
Ex. 3.

However, Schofield's
service on active duty was short-lived. Officials at the Agency's
national headquarters initially directed Swanton Sector's Chief
Patrol Agent not to put Schofield in uniform and instead to assign
him to administrative duties. Tr. 75, 79, 118. Schofield had been
either suspended, removed or on administrative leave since early
2005, and until he passed a periodic background reinvestigation
(PRI) he would not have access to the Agency's computer systems or
email, precluding him from performing his duties as a Border Patrol
Agent.2 Tr. 115, 162. They were also concerned
that Federal prosecutors would refuse to pursue future criminal
cases involving Schofield, because Schofield's prior actions in the
drug seizure had compromised his credibility and might trigger a
"Giglio" obligation.3 Headquarters officials checked with the
Agency's Office of Internal Affairs and ascertained that Schofield
was due to have a PRI performed. Tr. 118. They considered a
variety of positions for Schofield and decided to assign him to the
Swanton Sector headquarters as a mission support specialist, but
after a day or two in that position, Agency officials determined
that there was little or no work that Schofield could do, in light
of his inability to access the computer systems; instead, Schofield
was placed on (paid) administrative leave, and he has remained in
that status since approximately January 7, 2009. Schofield was
notified by the Agency's Office of Internal Affairs on January 22,
2009, that it was beginning Schofield's PRI. Tr. 161. The result
of this process was that Schofield did not "clear" his
reinvestigation; that is, he did not pass. Tr. 163. These results
were turned over to Agency management in approximately September
2009 to determine what further action would be taken. Tr. 145,
147, 168. At the time of the hearing, Schofield remained on
administrative leave, receiving pay and benefits but not working or
having the opportunity to earn administratively uncontrollable
overtime and other types of premium pay or to be considered for
training, details or promotion. Tr. 19-20, 39-40, 45, 46, 51.

DISCUSSION
AND CONCLUSIONS

Positions of
the Parties

General
Counsel

The General Counsel (GC)
argues that the Respondent has intentionally refused to comply with
the Award, by allowing Agent Schofield to work only for two days
before placing him back on administrative leave, a status in which
he is unable to earn a variety of premiums or to be considered for
promotion, training or details. Although the GC agrees
that

the Agency paid
Schofield full back pay, expunged any references to the adverse
action from

Schofield's personnel
file, and briefly reinstated him to duty status, it argues that
this does

not constitute full
compliance with the Award, citingKerr v. National Endowment for the Arts,726 F.2d 730, 733 (Fed. Cir. 1984). Because Schofield is
not being allowed to perform the duties he performed before his
adverse action, and because he is not enjoying many of the benefits
of active employment, the clear intent and purpose of the Award is
being thwarted.

The General Counsel
further submits that the Authority has long held that an agency's
failure to comply with a final arbitration award, even in
termination cases on which the agency cannot file exceptions under
section 7122(a) of the Statute, constitutes an unfair labor
practice under section 7116(a)(1) and (8). U.S. Army Adjutant General Publications Center,
St. Louis, Mo.,22 FLRA 200
(1986)(Army Adjutant
General). Once an award has become final
and binding, either through the denial of exceptions, the failure
to file exceptions, or the Federal Circuit's denial of a petition
for judicial review, the Authority will not review the merits of
the award in an unfair labor practice proceeding.
Id.at 206. Accordingly, the GC argues that the Respondent's
justifications for putting Schofield on administrative leave are
nothing more than collateral attacks on the Award and must be
rejected.

The GC recognizes that
the Merit Systems Protection Board (MSPB), which directly reviews
appeals of agency adverse actions and enforces compliance with its
own decisions, will excuse an agency's refusal to reinstate an
employee to his former position, notwithstanding a Board decision
in favor of the employee and astatus quo anteremedial order,
when the agency shows "that an outside event or determination
rendered the appellant incapable of performing the duties of his
prior position." Marcotrigiano v. Dep't of Justice, 95 MSPR 198, 204 (2003). InMarcotrigiano,the Board
held that the agency did not have to reinstate an INS investigator
to his former position after he was acquitted on charges of
pornography and his removal was overturned, because two U.S.
Attorneys had advised the employee's supervisors that they would
not use him as a witness, based onGiglio-type concerns related to
his criminal trial. While the Board recognized that the
credibility concerns about the employee were related to matters
that had been raised in his removal appeal, the Board noted that
these concerns had been raised not by the agency itself but by
Federal prosecutors. Id.at 203-05. The General
Counsel argues, however, thatMarcotrigianois distinguishable
from the instant case, because here theGiglioconcern was raised by
Agency officials, not outside prosecutors, and that it was mere
speculation at the time Schofield was removed from duty.
Similarly, the GC argues that in January 2009, Agency management
could only speculate as to whether Schofield would pass his PRI.
Even if Schofield did not pass the reinvestigation, the decision of
what action to take against Schofield rests with the Respondent,
not the division investigating him. Finally, the GC notes that the
Agency's concerns - both those relating to possibleGiglioproblems and those relating to Schofield's inability to
pass a reinvestigation - were based on the same conduct as that
which was litigated in his arbitration hearing. Thus, the GC
argues that the Respondent is improperly attempting to collaterally
attack the Award itself, which considered all of the same facts and
found that Schofield should be reinstated.

Respondent

The Respondent defends
its actions on several grounds. First, it asserts that it fully
complied with the Award, arguing that its reinstatement of
Schofield on January 5, 2009, fulfilled the requirements of the
Award, and that its decision to place him on administrative leave
two days later was a distinct and separate action that was
justified by the facts of the case. Citing the case ofNoble v. Dep't of
Justice, 68 MSPR 524 (1995), Respondent
asserts that an agency is not prohibited from instituting a
subsequent personnel action against an employee after rescinding
his prior removal. CitingU.S. Dep't of the Treasury, IRS,Austin Serv. Ctr., Austin,
Tex., 25 FLRA 71 (1987), Respondent
further argues that its compliance with the Award must be evaluated
in terms of whether its construction of the Award was reasonable,
and that in the circumstances of this case, it acted reasonably in
placing Schofield on administrative leave until his PRI was
completed. It noted testimony that Border Patrol Agents cannot
perform most of their work without access to the Agency's computer
systems, and that employees who have been in a non-duty status for
as long as Agent Schofield must pass a PRI before being allowed
access to those systems. In this context, the Respondent's removal
of Schofield from duty status on January 7, 2009, was a reasonable
precaution, based not on the conduct for which Schofield had been
removed, but on Schofield's inability to perform the duties of his
job until he passed a PRI.

Additionally, the
Respondent submits that it had a "strong overriding interest"
justifying its refusal to keep Schofield on duty status.
LaBatte v. Dep't of the Air
Force,

58 MSPR 586, 594 (1993).
InLaBatte,the MSPB upheld an agency's refusal to return an
employee to his former position because his security clearance had
been revoked; inMarren v.
Dep't of Justice,32 MSPR 285, 287
(1987), the Board upheld the agency's revocation of a Border Patrol
Agent's government driver's license, despite the fact that the
agent's removal for causing a serious car accident in his
government vehicle and for related conduct had been overturned.
The Respondent also cites theMarcotrigianodecision for this
same principle. In all of these cases, the Board held that despite
prior decisions ordering an employee's reinstatement, the lack of
some required job qualification (a government driver's license, a
security clearance) justified the agencies' refusal to return the
employees to their former jobs. Similarly, Respondent argues here
that all its Border Patrol Agents must have passed a PRI in order
to access the Agency's computer systems and to perform their
duties, and they must also be able to testify in criminal cases
against people they investigate. The Respondent submits that
Schofield lacked the former qualification when he was reinstated in
January 2009, and that they reasonably feared he would not be able
to meet the latter qualification.

The Respondent agrees
that once an arbitration award is final and binding, as the Award
was in this case, it cannot be collaterally attacked.
U.S. Dep't of Transportation,
Fed. Aviation Admin., Northwest Mountain Region, Renton,
Wash.,55 FLRA 293, 296-97 (1999). It
insists that it is not attacking the Award here, but rather that an
"outside event or determination" rendered Schofield incapable of
performing his duties. Resp. Brief at 19, paraphrasing theMarcotrigianodecision, 95 MSPR at 204.

Analysis

If this case simply
involved the question whether Respondent complied with the Award,
it would be fairly straightforward, and it would be resolved in
favor of the General Counsel. It is not that simple, however, and
requires a consideration of precedent from the MSPB as well as the
Authority, ultimately tipping the scales in favor of the
Respondent.

As noted by the General
Counsel, the Authority has long held that once an arbitration award
is final, the parties must comply with it and may not collaterally
attack it. Army Adjutant
General, supra,22 FLRA at 202. The
Respondent recognizes that the Award in this case was final and
binding. Resp. Brief at 19. A party's refusal to comply with a
final award is an unfair labor practice enforceable by the
Authority, even when the Authority lacks jurisdiction (pursuant to
section 7121(f) of the Statute) to hear exceptions to the award.
Dep't of HHS,
SSA,41 FLRA 755 (1991). Where the
award is unambiguous, a strict compliance test is employed.
See United States Dep't of
the Treasury, IRS, Austin Compliance Ctr., Austin, Tex.,44 FLRA 1306, 1315 (1992). Where the award is
ambiguous, the test for compliance is whether the agency's action
is consistent with a reasonable construction of the award;United States Dep't of Justice, Fed.
Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla.,59 FLRA 3, 4 (2003).

In accordance with these
precedents, the Respondent argues that it acted reasonably in
reinstating Schofield and then putting him on administrative leave,
in light of the logistics involved in putting an agent back on the
rolls within a short time frame. This argument is premised,
however, on the notion that the Award was ambiguous, and I cannot
accept that premise. There was nothing ambiguous about the
arbitrator's order to reinstate Agent Schofield. Reinstating
Schofield for two days and then placing him in a non-duty status
was considerably less than full compliance with the Award, and it
cannot be rationalized in terms of administrative difficulties in
fulfilling the arbitrator's demands. The Agency was not simply
looking for a few additional weeks to put Schofield back into a
full duty status;4rather, it was citing a new basis for
keeping him off duty. Respondent's argument conflates the issue of
whether it complied with the Award and the separate issue of
whether it had legitimate reasons for refusing to do so. Although,
as I explain later, I agree that it was justified in putting
Schofield on extended administrative leave, I will not indulge in
the illusion that this constituted compliance with the Award.

The Award directs the
Respondent,inter
alia,to reinstate Agent Schofield, to
make him whole in regard to pay and benefits, to expunge all
records of the adverse action, and not to use those records in the
future to detract from Schofield's promotional opportunities
or

other administrative
actions. Jt. Ex. 1 at 29. The Respondent was further directed to
grant any request Schofield might make in the subsequent year for
reassignment out of his current chain of command.
Id. The Award is clear in its intent to return Schofield to
his original

duty status and to
enable him to resume his career as a Border Patrol Agent. While he
is currently being paid his base salary while on administrative
leave, he is not earning administratively uncontrollable overtime
(which can routinely amount to a quarter of an agent's base pay) or
premiums such as night differential and Sunday pay, and he is not
being considered for promotions or career-enhancing details or
training. Tr. 19-20, 39-40, 45,

46, 51. The Award
clearly intended that Schofield be allowed to work as a Border
Patrol Agent and to have the advancement opportunities of other
agents, and both these purposes are being frustrated by the
Respondent's actions.5

The true issue in this
case is not whether the Respondent complied with the Award, but
whether it had a valid justification for refusing to comply. There
is little or no Authority precedent on this point, particularly in
employee removal cases, but there is a substantial body of
precedent at the MSPB, whose jurisdiction covers most Federal
employee removals, and whose case law also applies to arbitration
proceedings challenging such removals. Section 7121(e)(2) of the
Statute;see also Cornelius
v. Nutt,472 U.S. 648, 652 (1985). The
Board has long held that while an agency is generally required to
return a reinstated employee to his former position, it may refuse
to do so when there is "a strong, overriding interest" against
doing so. Payne v. U.S.
Postal Service,55 MSPR 317, 319-20
(1992). InPayne,an employee's removal for mishandling of the
mails was overturned, but subsequently he was convicted on criminal
charges arising out of the same actions for which he had been
removed. The Board noted that the criminal conviction was directly
related to the employee's official duties and held that it was "a
compelling reason for not returning appellant to active duty
status[.]" Id.at 320, 321. The Board citedBurrell v. Dep't of the Navy,43 MSPR 174 (1990), where the agency
successfully argued that despite an order to reinstate a motor
vehicle operator, the employee's convictions for reckless driving
and driving under the influence rendered him unfit to transport
explosives.6 Moreover, inYokley v. U.S. Postal Service, 57
MSPR 482, 285-86 (1993) andConnor v. U.S. Postal Service,

50 MSPR 389, 392-93
(1991), the Board held that the agency was justified in requiring
the employees to undergo fitness for duty examinations as a
prerequisite for reinstatement, based on the nature of their prior
actions and the length of time the employees had been off
duty.

The case law in this
area was summarized by the Board inSink v. U.S. Postal Service,

In theSinkdecision, the Board also noted that agencies are entitled
to "special deference" when "the issue of compliance [is] entwined
with security concerns." Id.at 634, citingLaBatte,
58 MSPR at 594. InLaBatte,a firefighter holding a
sensitive position requiring a security clearance was removed for
using cocaine, and while his removal action was pending, the agency
suspended his security clearance. The MSPB overturned the removal
and ordered him reinstated, but in a subsequent compliance
proceeding it held that the agency was justified in placing him in
another job until his security clearance was reinstated. "The lack
of a security clearance constitutes a compelling reason not to
return the appellant to his Firefighter position." 58 MSPR at 595.
See also King v. Dep't of
the Navy, 98 MSPR 547, 555 (2005).

InLaBatte,the
appellant's return to his old job was merely delayed, but the Board
has also upheld the outright removal of employees due to the
revocation of their security clearance. See, e.g., Payne, supra,andEgan v. Dep't of
the Navy,28 MSPR 509, 522 (1985), which
was ultimately affirmed by the Supreme Court inDep't of the Navy v. Egan,484 U.S. 518 (1988)(Egan). Similarly, inBlagaich v. Dep't of
Transportation,90 MSPR 619 (2001), the
agency removed an air traffic control specialist (a position
requiring a security clearance) after he was criminally convicted
on several unspecified charges. An arbitrator reduced his removal
to a suspension and ordered him reinstated, but after receiving the
arbitration decision the agency revoked his security clearance
based on the same underlying misconduct and removed him once again.
Despite the prior arbitration decision, the Board refused to apply
the doctrine ofres
judicataor to overturn the employee's
removal. Id.at 623-24. It held that the initial removal had
been based on the misconduct leading to his criminal conviction,
while the subsequent removal was based on separate and
distinguishable grounds: his loss of the security clearance that
was required for his job. Id. Pursuant to the Supreme
Court's decision inEgan,supra,484 U.S. at 530, the
Board stated that it could not review the merits of a decision to
revoke a security clearance. In light of the employee's loss of
his security clearance, the Board held that his removal was valid.
Blagaich, 90 MSPR at 626. Finally, the Board held inBlagaichthat the agency was not required to place the employee in a
nonsensitive position. CitingLaChance v. Jowanowitch,

144 F.3d 792, 793 (Fed.
Cir. 1998), the Board found no statute, agency regulation or other
evidence that the employee had a right to reassignment to a
nonsensitive position. As inLaChance,Blagaich had been hired
for a position requiring a security clearance, and once he lost
that clearance he could not perform his job. 90 MSPR at 626.
See also Lyles v. Dep't of
the Army,864 F.2d 1581, 1583 (Fed. Cir.
1989).

In the case at bar,
Schofield was employed as a Border Patrol Agent, which is
designated by the Agency as a "Critical-Sensitive" position, which
requires employees to undergo periodic reinvestigation every five
years. Tr. 155. See
alsoResp. Ex. 1 at 9, 16 (Personnel
Security Handbook, HB 1400-07, December 2006) and 5 C.F.R. §§
732.201(a) and 732.203. 5 C.F.R. § 732.201(a) provides:

For purposes of this
part, the head of each agency shall designate, or cause to be
designated, any position within the department or agency the
occupant of which could bring about, by virtue of the nature of the
position, a material adverse effect on the national security as a
sensitive position at one of three sensitivity levels:
Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive.

5 C.F.R. § 732.203
requires periodic reinvestigations of all Critical-Sensitive
employees every five years and further states: "The employing
agency will use the results of such periodic reinvestigation to
determine whether the continued employment of the individual in a
sensitive position is clearly consistent with the interests of the
national security."

Pursuant to the above
regulation, Chapter 1, Section 4 of the Agency's Personnel Security
Handbook provides, in regard to Position Sensitivity Designation,
"CBP [Customs and Border Protection] positions are designated High
Risk Public Trust or Critical-Sensitive National Security." Resp.
Ex. 1 at 9. It defines Critical-Sensitive positions as "hav[ing]
the potential for causing exceptionally grave damage to national
security." Id. Later, it states: "All employees are subject to
a periodic reinvestigation (PRI) to ensure continued suitability
for employment." Id.at 16.

It should also be noted
that the definition section of the Personnel Security Handbook
contains a separate definition for "Security Clearance" than for
"Position Sensitivity Designation," (Id.at 10) and it devotes
separate chapters for periodic reinvestigations and for security
clearances. It appears that while all CBP employees are designated
as either High Risk Public Trust or Critical-Sensitive National
Security positions, and that Border Patrol

Agents are designated as
Critical-Sensitive National Security, not all CBP employees are
required to have security clearances. SeeResp. Ex. 1 at 19. The
record does not indicate whether Border Patrol Agents are required
to have a security clearance.

TheEgan,LaBatte, BlagaichandLaChancedecisions cited above
all, involve the removal of employees from, or reinstatement to,
positions requiring a security clearance. Pursuant toEgan,
reviewing agencies and courts are prohibited from examining the
substance of an agency decision to revoke a security clearance.
484 U.S. at 530. It is not entirely clear, based on the evidence
of record and the case law, whether the same principles of "special
deference" to executive decisions on security clearances are
applicable to cases involving periodic reinvestigation.
Sink, supra,65 MSPR at 634.

The Authority has
applied the holding and underlying principles ofEganin a
variety of contexts, although not in circumstances analogous to the
instant case. Pursuant toEgan,it stated inUnited States Information
Agency,32 FLRA 739, 745 (1988), that an
arbitrator may not review the merits of an agency's security
clearance determination. InIFPTE, Local 3,

57 FLRA 699, 700 (2002),
the Authority stated that it "has consistently indicated that
proposals which would permit arbitrators to review the merits of
security clearance determinations would not be negotiable
underEgan." Yet it has also held thatEgan"does not foreclose
examination of other issues not related to the merits of an
agency's clearance determination[.]" AFGE, Local 1923,39 FLRA
1197, 1205 (1991). Accordingly, inPuerto Rico Air National Guard, 156thAirlift Wing
(AMC), Carolina, P.R.,56 FLRA 174
(2000), the Authority held that an agency committed an unfair labor
practice when it suspended several employees' security clearances
in retaliation for lawful picketing. The Authority reasoned that
it was not barred underEganfrom making such a
determination, as the agency had stated unequivocally that it
suspended the employees' security clearances because of their
picketing. Thus, the Authority said it did not need to examine the
substance of the agency's security clearance decision in order to
find an unfair labor practice.

Although the PRIs
performed by the Respondent's Office of Internal Affairs are not,
in and of themselves, security clearance determinations, it is
clear from the quoted language of the regulation and the Agency's
handbook that a PRI directly involves questions of national
security. 5 C.F.R. part 732, on which the classification of the
position of Border Patrol Agent as Critical-Sensitive is based, is
entitled "National Security Positions," and by definition an
employee holding a Critical-Sensitive position may have "a material
adverse effect on the national security[.]" 5 C.F.R. § 732.201(a).
The record in our case does not contain any substantive
information about the PRI performed on Agent Schofield in the
months prior to the hearing, but a determination that he failed the
PRI inherently indicates that his "continued employment . . . in a
sensitive position is [not] clearly consistent with the interests
of the national security." 5 C.F.R. § 732.203. In these respects,
and in the limited context of this case, it is difficult to discern
any meaningful distinction between the failure to

pass a PRI and the
revocation of a security clearance. Both Deputy Division Chief
Viens and Respondent's Internal Affairs official testified that
agents returning to a duty status cannot

have access to the
Agency's computer and security systems until they have passed a
PRI, and as a result they would not be able to perform the duties
of their job. Tr. 115, 162. This is not a mere technicality or
personnel rule, but an issue that directly involves national
security.

The classification
system that has been established within the Executive Branch to
protect national security, as described by the Supreme Court
inEgan,484 U.S. at 527-30, is indistinguishable from the
Respondent's system that has been outlined in the present case
requiring Border Patrol Agents to pass Periodic Reinvestigations in
order to demonstrate the continued ability to perform the duties of
their jobs. Accordingly, if the Authority is asked to compel an
agency to reinstate an employee to a Critical-Sensitive position,
it should not do so if this would require the Authority to evaluate
the substance of a PRI determination.

Arbitrator Denaco
ordered the Respondent to reinstate Schofield as a Border Patrol
Agent. The issue of Schofield's PRI was not raised in that
proceeding, because the need to perform a PRI did not arise until
Schofield was ordered to be reinstated. Schofield had been in a
non-duty status from 2005 to January 2009. The record establishes
that Border Patrol Agents who have been "off rolls" and are
returning to active duty must pass a PRI before

having access to the
Agency's computer systems, unless they have a current PRI in their
files. Tr. 115, 162. Schofield's last PRI had been performed in
1997, and a lesser form of investigation was performed in 2003.
Tr. 162-3. Thus the Agency's normal security procedures required a
new PRI to be performed for Schofield, and the Agency followed
these procedures in initiating such a PRI in January 2009. Several
months later, in approximately September 2009, the PRI was
completed, and Schofield did not pass. Tr. 147, 168. As a result,
Schofield has not had access to the Agency's computer and security
systems, and is unable to perform a significant component of his
duties as a Border Patrol Agent. Tr. 115, 168.

In order for the
Respondent to reinstate Schofield fully as a Border Patrol Agent in
January 2009, and to comply with the Award, it would have had to
override or violate the procedures requiring PRIs. It would have
had to give access to the Agency's automated systems (and all the
sensitive information that might be contained therein) to a person
whose "continued employment" has been determined not to be
"consistent with the interests of the national security." 5 C.F.R.
§ 732.203. As theEgancourt stated with regard to
security clearances, the process is "an attempt to predict his
possible future behavior and to assess whether . . . he might
compromise sensitive information. . . . Predictive judgment of
this kind must be made by those with the necessary expertise in
protecting classified information." 484 U.S. at 528-29. Needless
to say, neither I, nor the Authority, possess the expertise
necessary to decide whether Schofield should be allowed access to
the Agency's

sensitive information.
Placing Schofield in his former position as a Border Patrol Agent,
and affording him all the career opportunities to which an agent is
entitled, would require the Agency to assume a national security
risk that its Office of Internal Affairs determined was
unacceptable. Such an order would not merely review the substance
of the PRI determination, but override the PRI entirely.

On the basis ofEganand
related Authority and MSPB precedent, I conclude that the
Respondent was justified in placing Schofield on administrative
leave until he passed a PRI. Although Internal Affairs had not yet
begun its PRI on Schofield when he was reinstated on

January 5, 2009, Agency
officials checked and learned that Schofield was due to have a PRI
in order to return to full duty status, and the PRI was initiated
later that month. Tr. 114, 118, 134, 147, 161. In these
circumstances, I find that the Respondent had compelling and
overriding reasons to keep Schofield off active duty until he
passed his PRI. Since he subsequently failed the PRI, the
Respondent was justified in keeping him off active duty.

Contrary to the
assertion of the General Counsel, Respondent's actions in this case
do not represent a collateral attack on the Award. Respondent has
not disputed here either the factual or legal conclusions of the
arbitrator, but rather it has based its actions on additional facts
that did not exist at the time of the arbitration hearing:
Schofield's failure to pass his PRI and his consequent inability to
perform the duties of a Border Patrol Agent. The MSPB made a
similar analysis inBlagaich,
supra,90 MSPR at 623-24, and in a
somewhat different context inMarcotrigiano, supra,95 MSPR at
203-05. I believe the reasoning is applicable here as well. The
arbitration addressed the proposed removal of Schofield based on
his

conduct in 2005;
Respondent's action placing him on administrative leave in 2009 was
based on Schofield's inability to perform the duties of his job
until he passed a PRI. This is a separate and independent basis
for taking action against Schofield, and this distinguishes it from
cases such asU.S. Dep't of
Transportation, Fed. Aviation Admin.,54
FLRA 480 (1998). Respondent is not claiming that Arbitrator
Denaco's Award is contrary to law or regulation. Rather, it is
arguing that once Schofield became eligible for reinstatement in
January 2009, a basic requirement of his position was passing a
PRI. Until he passed the PRI, he could not perform the duties of
his job because he did not have access to basic information
necessary for his work; after he failed the PRI, his inability to
work as a Border Patrol Agent was further established. As
inBlagaichandMarcotrigiano,Respondent's
actions concerning Schofield in 2009 were based on facts and events
separate from those decided by Arbitrator Denaco.

This does not mean that
Agent Schofield is without recourse in seeking to regain his job.
There may be internal Agency procedures for him to appeal the
outcome of his PRI; moreover, the Agency will have to institute an
adverse action against him if it wishes to change his status as an
employee on administrative leave and to remove him permanently from
his position, thereby entitling him to statutory appeal procedures.
This case also does not address whether there are other jobs that
Schofield can perform or whether the Agency is required to find
such a position for him. The current decision simply means that
the FLRA is not the appropriate forum for overturning the
determination of an employee's national security-based periodic
reinvestigation.

For all of these
reasons, I conclude that the Respondent did not commit an unfair
labor practice when it removed Schofield from active duty in
January 2009. Accordingly, I recommend that the Authority issue
the following Order:

ORDER

It is ordered that the complaint be, and
hereby is, dismissed.

Issued, Washington, DC,
September 29, 2010.

RICHARD A.
PEARSON

Administrative Law
Judge

CERTIFICATE
OF SERVICE

I hereby certify that
copies of thisDECISION, issued by RICHARD A.
PEARSON, Administrative Law Judge, in Case No. BN-CA-09-0171, were
sent to the following parties:

1 The
General Counsel noted some corrections to the transcript in its
post-hearing brief. While these corrections were untimely under 5
C.F.R. § 2423.21(b)(4), I have independently determined that they,
as well as other corrections are appropriate, as follows: 1)
Wherever the name "Aguila" occurs, it should be replaced with
"Aguilar"; 2) On page 9, line 6, "McCole" should be replaced with
"make whole"; 3) On page 75, line 25, "his" should be replaced with
"your"; and 4) On page 125, line 17, "OPF" should be replaced with
"OPM."

2 An
official of the division within the Office of Internal Affairs that
performs employee security clearance investigations and periodic
reinvestigations testified that the position of Border Patrol Agent
is classified as "critical sensitive" and that all such employees
must have a "single scope background investigation" performed every
five years. Tr. 150, 154-55; see also Resp. Ex. 1.

3
Giglio v. United States, 405 U.S. 150 (1972)(Giglio), requires
Federal prosecutors to disclose to defense counsel information that
bears on the credibility of a government witness.

5 In
analogous situations, the MSPB has held that placing an employee on
administrative leave following his reinstatement is not full
compliance with a reinstatement order. Special Counsel v. Dep't of
Transportation, 72 MSPR 104, 107 (1996); Rauccio v. U.S. Postal
Service, 44 MSPR 243, 245 (1990).

6 In
Burrell, the agency agreed to place the appellant in a lower
position, but in Payne, the agency's insistence that it had no
other position for the appellant was upheld by the
Board.

7 The
Board has also held that an agency's concern (pursuant to the
Supreme Court's 1972 Giglio decision) that prosecutors would not
allow an employee to testify in court may justify its refusal to
place an employee into a job that requires him to appear in court.
Marcotrigiano, supra. In our case, Respondent cites this as an
additional justification for its refusal to put Schofield back onto
active dut